Nasara vs State & Ors.
2012 Latest Caselaw 787 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                  CRL.M.C. 2369/2011


                                      Date of Decision : 06.02.2012

NASARA                                            ..... Petitioner
                             Through: Mr. Prabhat Kiran, Adv.

                             versus

STATE & ORS.                                ..... Respondents
                             Through: Mr. Sunil Sharma, APP

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

Crl. M. A. No. 8646/2011

1. This is a petition filed under Section 482 Cr.P.C. assailing

the order dated 06.05.2011 passed by the learned

Metropolitan Magistrate, Tis Hazari Courts, Delhi in

respect of FIR No. 84/2009, under Section 498A/406/34

IPC registered by P.S. Subzi Mandi, Delhi. By the

impugned order, the so called protest petition of the

petitioner, filed under Section 200 Cr.P.C., for taking the

cognizance of the offence against the accused Tanveer

Alam (brother-in-law of the husband of the present

petitioner) was dismissed.

2. Briefly stated the facts of the case are that the petitioner

got married to the respondent no.2/Tabrez Alam,

according to Muslim rituals, on 28.04.2008. On account

of demand of dowry, the complainant was subjected to

cruelty. She lodged a complaint on 25.02.2009, to the

ACP, Crime Branch, Women Cell, Subzi Mandi, Delhi. The

aforesaid FIR was registered against the accused

persons, namely, Tabrez Alam (Husband), Saira Khatoon

(Mother-in-law) and Tanveer Alam (brother-in-law of the

husband of the present petitioner). After investigation in

the matter, the charges were framed against Tabrez

Alam (Husband), Saira Khatoon (mother-in-law) and

Tanveer Alam (Nandoi) leaving four other persons in

column no. 12 of the charge sheet on the ground that

there was no sufficient evidence to send them for trial.

The learned Magistrate took the cognizance of the

offence and procured the attendance of all the three

accused persons, namely, Tabrez Alam (Husband), Saira

Khatoon (Mother-in-law) and Tanveer Alam (brother-in-

law). On 25.01.2011, the learned Magistrate passed an

order of discharge so far as Tanveer Alam (brother-in-

law) is concerned, on the ground that there was no

sufficient evidence to proceed against him for an offence

under Section 498A/406 IPC.

3. The prosecution feeling aggrieved by the aforesaid order

had filed a revision petition as shown in the status report

filed before this Court. The revision petition was also

dismissed, though, the date of dismissal is not given.

Curiously, the photocopies of neither the order of

discharge, dated 25.01.2011, nor the order of dismissal

passed by the Court were placed on record. In the

meantime, it seems that the petitioner filed a protest

petition, under Section 200 Cr.P.C., before the learned

Magistrate, for taking cognizance against the brother-in-

law (nandoi) of the present petitioner, Tanveer Alam

also. The said petition was dismissed by the learned

Magistrate vide impugned order on 06.05.2011 on the

ground that the said accused person had already been

discharged and the learned Magistrate did not have any

power to review its own order as it would amount to

double jeopardy.

4. I have heard the learned counsel for the petitioner and

the learned APP.

5. The contention of the learned counsel for the petitioner is

that the impugned order dated 06.05.2011, dismissing

the protest petition, is totally unsustainable in the eyes of

law in as much as definite allegations were made against

Tanveer Alam in the complaint. The learned counsel has

taken the Court through the complaint wherein she has

stated that after the marriage the family members and

her husband had demanded the money for purchase of a

Maruti Wagon R car. It has also been alleged by her that

she had handed over a sum of `2,00,000/- to her

brother-in-law(nandoi), and therefore, it is contended

that a case under Section 498A/406IPC was made out

against him. The learned counsel for the petitioner has

also relied upon a case titled Reeta Nag Vs. State of West

Bengal, 2010 Cri. L.J. 2245.

6. The submissions made by the learned counsel for the

petitioner are totally without any merit. In the instant

case, the prosecution had filed a final report sending

three accused persons including the accused in question

namely, Tanveer Alam, for trial. The learned trial Court

after hearing the arguments discharged Tanveer Alam as

it had found no prima facie evidence against him

constituting the offences of Section 498A or 406 IPC.

This order of discharge obviously must have been passed

by the learned trial Court after due application of mind.

This order was assailed before the learned Additional

Sessions Judge, Tis Hazari Court, Delhi which was also

dismissed by the Court. Thus, these two Courts have

applied their mind and found no substance in the

contention of the petitioner so far as the allegation of

demand of dowry and the offence of breach of trust

against Tanveer Alam is concerned. There is no dispute

about the fact that offences under Section 498A/406 IPC

are State cases where the complainant comes into the

picture only either at the time of recording of evidence or

when the police have filed a final report seeking

cancellation of the FIR. Only in the latter, contingency

the petitioner can file the protest petition under Section

200 Cr.PC. In the instant case, there is absolutely no

occasion for the petitioner to file the protest petition as

the Court has already applied its mind and discharged

accused Tanveer Alam who had been sent for trial. It is

not a case where the prosecution had placed the name of

the said accused in column no. 12 that there was no

evidence against him which warranted the filing of the

protest petition. Therefore, I am of the considered view

that the protest petition filed by the petitioner was

misconceived. So far as the impugned order which has

been passed by the learned Magistrate is concerned, it

cannot be said to be wrong. The learned Magistrate has

rightly observed that once the mind has already been

applied by her, while discharging the accused, Tanveer

Alam, she has absolutely no power to review the same

order of discharge and put Tanveer Alam back to Trial.

Thus, under such a contingency the only available

remedy to the petitioner is to get the said accused

summoned, only if sufficient evidence is brought during

the course of the trial by her or by the prosecution. It is

obvious that the petitioner can ask the Trial Court to

invoke the provision of Section 319 Cr.P.C. at an

appropriate stage in case the evidence is brought on

record. So far as the impugned order is concerned, I do

not find any infirmity, illegality or impropriety or any

abuse of processes of law which will warrant the

interference by this Court. So far as the judgment relied

upon by the learned counsel for the petitioner in Retta

Nag's case (supra) is concerned, the facts of the said

case are totally different. In that case, the protest

petition was filed in respect of those accused persons

who were sought to be discharged by the prosecution

itself while as in the instant case, admittedly, Tanveer

Alam was sent for trial and later discharged by the Court.

Therefore, the observations passed by the Apex Court

are not applicable to the present petition.

7. For the reasons mentioned above, the petition is totally

misconceived and accordingly, the same is dismissed.

V.K. SHALI, J

FEBRUARY 06, 2012 KP